On February 12, 2009, Washington, D.C., partner Bruce Brown testified in front of the House Subcommittee on Commercial and Administrative Law about the need for a legislative remedy to combat the problem of libel tourism. Libel tourism–the phenomenon that describes foreigners who sue Americans for defamation overseas (usually in London) to avoid the protections of the First Amendment–has gained attention in recent years from a string of high-profile suits against U.S.-based authors.
The panel participants, which also included author Rachel Ehrenfeld, Washington, D.C., media lawyer Laura Handman, and New York University Professor Linda Silberman, discussed the differences between U.S. and U.K. law that allow libel tourists to circumvent U.S. free-speech protections and exploit plaintiff-friendly U.K. defamation law, the increasing frequency of libel tourism cases brought in English courts, and libel tourism's threat to the First Amendment. "Fear of substantial libel judgments in the U.K. plainly has a distorting impact on what is published here at home, stifling free speech in the U.S. on many subjects," Brown told the Subcommittee.
The panelists also addressed how to craft an effective legislative remedy that truly deters libel tourists from suing in England based on flimsy connections to the forum while comporting with other constitutional requirements, such as due process, that limit U.S. courts' ability to exercise jurisdiction over libel tourists who may have no connection to the United States, other than filing suit against an American author overseas. "Countering the impact of libel tourism is not about second-guessing the British people for striking a different balance between freedom speech and reputation than we have," Brown said at the hearing. "It is about making sure that foreign jurisdictions do not dictate to us how we should strike this balance for ourselves."
The hearing, chaired by Rep. Steve Cohen (D-Tenn.), set the stage for the reintroduction of his libel tourism bill in the 111th Congress. Last Congress, three bills–two in the House, one in the Senate–were introduced to combat the problem. The first bill, sponsored by Subcommittee Chairman Steve Cohen (D-Tenn.), affirmed that courts in the United States can decline to recognize foreign defamation judgments if they are inconsistent with the First Amendment. The other two identical bills, introduced by Rep. Peter King (R-N.Y.) and Sen. Arlen Specter (R-Pa.), allowed American authors to seek a declaratory judgment and treble damages in a U.S. court by creating a cause of action that permits recovery when an author sued overseas can prove that the foreign libel plaintiff "intentionally engaged in a scheme to suppress First Amendment rights."
Congressional attention to the issue came on the heels of the New York State legislature's passage of the "Libel Terrorism Prevention Act" last year. New York and Illinois are the only two states in the country that have passed anti-libel tourism laws that allow state courts to assert authority over foreign citizens based on a libel judgment they have obtained abroad against a resident of the state. The New York law was passed in reaction to a lawsuit filed in the United Kingdom by Saudi Khalid bin Mahfouz against Ehrenfeld for statements in her book alleging that bin Mahfouz had ties to terrorism. Ehrenfeld lost a default judgment in England and then brought an action in New York seeking a declaratory judgment that the English judgment was unenforceable. The court declined, stating that it had no jurisdiction over bin Mahfouz since he had not tried to enforce the judgment in the United States.